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Conservatives, regardless of their own position on whether the United States should invade Iraq to depose Saddam Hussein, should all agree about the importance of the federal government adhering to the U.S. Constitution. This is why it is troubling to read arguments that President Bush does not need a congressional declaration of war to move against Iraq.
Not only are conservative pundits and talk-show hosts (such as Rush Limbaugh) making such claims, but both The Washington Post and the Associated Press have reported that White House lawyers have advised the president he does not need congressional authorization for an Iraq war. Such advice represents a blatant disregard for the Constitution, which unambiguously assigns the power to declare war to Congress. Invading a country without direct provocation, even if the Bush administration is correct in its calculation that it poses risks that must be dealt with preemptively, is certainly an act of war and thus is constitutionally permissible only with congressional approval.
Defenders of the Congress-doesn’t-need-to-approve view claim that President Bush should use the 1991 congressional authorization of force against Iraq and concomitant United Nations Security resolutions, still in effect, as his legal justification for an invasion. Let us hope Al Gonzales’ staff provides better legal counsel on other constitutional matters. First, consider the original intent of the members of Congress who enacted the first resolution authorizing military intervention against Iraq over a decade ago. At that time, Iraq had invaded and annexed Kuwait, a sovereign nation, and was threatening other sovereign nations in the region. Then-President George Bush sought to eject Saddam Hussein’s forces from Kuwait. Iraqi aggression against Kuwait also led to the U.N. Security Council resolutions in question.
True, Congress did even then make a reference to Hussein’s attempts at developing weapons of mass destruction. But this was a single “finding” in the preamble, not the central animating purpose of the resolution in the same way that it is at the center of the case for invading Iraq today. The arguments related to international law are even more constitutionally dubious – nowhere in the Constitution is it stipulated that an international body’s resolutions may supersede the role of Congress in declaring war or in anything else – and arguably just as far removed from the original intent of those who drafted the U.N. resolutions against Iraq. It strains credulity to argue that resolutions and an act of Congress that the first President Bush clearly found inadequate as a basis for marching on Baghdad following Iraq’s expulsion from Kuwait can be cited as authorization for regime change by a second President Bush a decade later. Even during Desert Storm, many of our coalition partners and some members of Congress who voted to authorize the use of force specifically felt that entering Iraq to remove Hussein was outside the parameters of the agreed upon mission. If this muddled constitutional thinking passes for conservative policy, it does not bode well for a constitutional prosecution of the war on terrorism. Congressional assent to military intervention isn’t an elastic thing that may be endlessly re-used by different presidents even after the motivating circumstances have changed.
The Framers explicitly rejected presidential wars at the Constitutional Convention, with Elbridge Gerry going so far as to say that the idea is one he “never expected to hear in a republic.” James Madison, often called the Father of the Constitution, had this to say about constitutional war powers in 1793: “…The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature . . . the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war." The Framers were well aware of the propensity of unchecked kings to drag their nations into war and wished to avoid this in the new republic. The power to commit a nation to war, placing young men and women in harm’s way, is too great to be entrusted to any one person.
Full disclosure: I am an Iraq conflict skeptic. Loathsome as Saddam Hussein is, there is no compelling connection between his regime and 9/11. He has not supplied chemical and biological weapons – which he already has a supply of – to terrorist organizations in the past. Indeed, the most notorious examples of him using such weapons himself have been motivated by his own political self-preservation. There is evidence that he responds to deterrence and while the containment of Iraq since the Gulf War has not been perfect, it has been good enough to prevent any aggression outside Iraqi borders – even Kuwait does not support a U.S. military campaign against its onetime invader. A war against Iraq seems to me to be unrelated to the campaign against al Qaeda and, at worst, it could undermine it by intensifying Arab hatred of Americans and jeopardizing the intelligence cooperation we need to successfully wage a multifaceted war against international terrorism.
Many people I respect – House Majority Leader Dick Armey, Sen. Chuck Hagel, Secretary of State Colin Powell, Doug Bandow and Gene Healy from the Cato Institute – are similarly skeptical. But I also respect many of the hawks pushing for an Iraq war – National Security Advisor Condolezza Rice, Secretary of Defense Donald Rumsfeld and above all Vice President Dick Cheney. Preemption is perfectly valid in principle and in practice, provided that we are acting against threats that are real or at least probable rather than purely speculative. The arguments of both sides should be heard and carefully weighed by the American people and their elected representatives in Congress.
President Bush should ignore his advisors and heed the Constitution.
If Iraq is to the next front in the war on terror, the nation must be
committed. To secure that commitment, the president must make his case
and Congress must make its verdict.